(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA)
1. The petitioner has approached this Court invoking Articles 14, 16, 21, 226 and 227 of the Constitution with the prayer to quash order dated 06.10.2010 of Senior Commandant, ONGC, Mumbai, retiring the petitioner with immediate effect, he having attained the age of 50/55 or having completed 30 years of service, qualifying him for pension.
2. Learned counsel Mr. V. M. Dhotre vehemently argued that the petitioner had put in 37 years of good service under the respondent and when he was earlier compulsorily retired in the year 2003, he was ordered to be reinstated. He further submitted that on consideration of same record, which was available at the time of his earlier premature retirement, the petitioner was again sought to be retired prematurely in terms of Fundamental Rule 56, which could apparently be said to be arbitrary and unfair.
3. Learned counsel Mr. Dhotre relied upon decision of the Apex Court in S. Ramachandra Raju vs. State of Orissa [ AIR 1995 SC 111], to submit that though the order of compulsory retirement is not a punishment, the Government must exercise its power only in the public interest to effectuate the efficiency of the service. The dead wood need to be removed to augment efficiency. At the same time the exercise of power of compulsory retirement must not be a haunt on public servant but must act as a check and a reasonable measure to ensure efficiency of service. Even if there may not be sufficient evidence to take punitive disciplinary action, if the conduct and reputation of the employee is such that his continuance in service would be a menace in public service and injurious to public interest, he could be prematurely retired on the basis of his entire service record. Therefore, the entire service record, more particularly the latest, would form the foundation for the opinion and furnish the base to exercise the power under the relevant rule to compulsorily retire a government officer. On total evaluation of the entire record of service, if the government or the authority forms the opinion that in the public interest the officer needs to be retired compulsorily, the Court may not interfere with the exercise of such bona fide exercise of power, but the Court has a duty to exercise the power of judicial review not as a Court of appeal but in its exercise of judicial review to consider whether the power has been properly exercised or is arbitrary or vitiated either by mala fide or actuated by extraneous consideration.
4. There was no dispute about the fact that the petitioner had, at the time of moving the Court, also submitted his representation for decision by the respondent at higher levels, and by now that representation has been decided by order dated 29th July 2011 after consideration by the committee headed by the Director General/CISF and Deputy Inspector General/ Pers (FHQrs) as its members. According to that order, that committee has gone through entire service record i.e. ACRs, punishment etc. and after due consideration thereof the committee came to the conclusion that there was no extenuating circumstance warranting any interference in the order already made by the appropriate authority regarding premature retirement from service in public interest of the petitioner, under the provisions contained in Fundamental Rule 56.
5. By filing an affidavit of Senior Commandant in Central Industrial Security Force (Ministry of Home Affairs) CISF Unit ONGC Mumbai, it is stated that during his service in the CISF, the petitioner has been awarded ten minor and one major punishments and there were three adverse entries in his service record. It is further stated, inter alia, that a committee was constituted at Force Head Quarter and after considering representation of the petitioner, he was reinstated in service with effect from 29.10.2003. By reinstating him in service, he was given opportunity to serve but he did not improve his attitude and committed an offence of not checking a person at his duty post for which he was awarded a punishment. Hence, as per the existing policy of the department his case was called upon by competent authority for superannuation review and considering his liabilities and future of his family, he was prematurely retired for which he will get all the pensionary benefits. The decision has been taken in terms of the existing departmental policy.
6. In view of the requirement of strict discipline in Force to which the petitioner belonged and in view of the record of service of the petitioner as also in absence of any evidence or allegation of mala fide on the part of respondent, this Court would not be justified in interfering with the administrative order issued by the respondent in exercise of powers conferred upon them as an employer. Therefore, the petition, along with the Civil Application, is dismissed. Rule is discharged with no order as to costs.
[D.
H. WAGHELA, J.] [N.
V. ANJARIA, J.] Amit Top